class 7

I. First Amendment Speech Restrictions
A. Identify the Government Action/Regulation

  1. Is it Content-Based? (C-B)

    • Definition: Restrictions based on the content or subject matter of the speech.

    • Standard: Strict Scrutiny.

      • Government must show: Compelling government interest AND Narrow tailoring AND Least restrictive means.

      • Formulation: Regulation⟶Compelling Interest and Narrow Tailoring and Least Restrictive Means\text{Regulation} \longrightarrow \text{Compelling Interest} \text{ and } \text{Narrow Tailoring} \text{ and } \text{Least Restrictive Means}

      • Example: Zoning rule that singles out a particular kind of store (e.g., an adult bookstore next to a school).

  2. Is it Content-Neutral? (C-N)

    • Definition: Restrictions that regulate the channels, timing, or place of speech rather than the content itself (e.g., time/place/manner restrictions).

    • Standard: Intermediate Scrutiny.

      • Government must show: Regulation is narrowly tailored to serve a substantial government interest.

      • Formulation: Regulation⟶Narrowly Tailored to serve a Substantial Government Interest\text{Regulation} \longrightarrow \text{Narrowly Tailored} \text{ to serve a } \text{Substantial Government Interest}

      • Examples: Protest permits; zoning laws affecting speech in a broad, non-targeted way (Time/Place/Manner restrictions).

B. Analyze if Speech is Unprotected (If Applicable)

  1. True Threats: Statements that fearfully threaten violence; generally not protected.

    • Reference: Brandenburg v. Ohio (imminent lawless action standard for incitement).

  2. Obscenity and Child Pornography: Not protected by the First Amendment.

II. Torts Involving Speech
A. Defamation

  1. Elements:

    • 1. False and Defamatory Statement: About a person.

    • 2. Publication to a Third Party:

      • Publication vs. Publicity: Publication involves dissemination to a broad audience; publicity is making info widely known.

      • Note: Miller v. Motorola (minority view that publicity could require a large audience).

    • 3. Unprivileged Publication.

    • 4. Fault:

      • Private Individual: Negligence standard. (Gertz v. Welch)

      • Public Figure/Official OR Matter of Public Concern: Actual Malice standard. (New York Times v. Sullivan)

        • Actual Malice: Knowledge of falsity OR reckless disregard for the truth.

    • 5. Harm: Special harm vs. general injury (not always monetary).

  2. Key Cases: New York Times v. Sullivan (actual malice for public officials); Gertz v. Welch (negligence for private individuals).

B. False Light

  1. Elements:

    • 1. Publicity of Matter: Concerning another that places the person in a false light in the public eye.

    • 2. Highly Offensive: To a reasonable person.

    • 3. Fault: Publication with knowledge or reckless disregard that the matter is false (Actual Malice) – standard's applicability varies across jurisdictions.

  2. Key Cases:

    • Time Inc. v. Hill (applied actual malice concepts to false light claims for private figures in some contexts).

    • Gertz v. Welch (contrasting framework for fault).

    • Brown v. Flint (highlights jurisdictional differences).

  3. Distinction from Defamation: False light focuses on the portrayal or perception created, not necessarily a directly false factual assertion; centers on emotional/dignitary harm.

C. Intentional Infliction of Emotional Distress (IIED)

  1. Elements:

    • 1. Extreme and Outrageous Conduct.

    • 2. Intent: To cause OR reckless disregard of the high risk of causing severe emotional distress.

    • 3. Severe Emotional Distress: Is caused.

    • 4. Bodily Harm: May accompany (optional).

  2. Special Rule for Public Figures/Matters of Public Concern (Speech Context): Actual malice standard applies if the speech is parody or satire.

    • Case: Hustler Magazine v. Falwell (parody protected if no reasonable reader would treat it as factual assertion; actual malice required for IIED).

D. Intrusion Upon Seclusion

  1. Elements:

    • 1. Intent to Intrude.

    • 2. Intrusion Upon the Solitude or Seclusion of Another.

    • 3. Highly Offensive: To a reasonable person.

  2. Distinction: Focuses on privacy invasion, rather than reputation harm.

III. General First Amendment Protections & Concepts
A. Protection for Protest Speech on Public Issues

  1. Rule: Speech on public issues is protected by the First Amendment, even if distressing or controversial, especially if it occurs in a public forum and relates to societal issues.

  2. Case: Snyder v. Phelps (protest at a military funeral on public issues protected, provided sufficient distance and public forum).

B. Parody and Satire as Protected Speech

  1. Rule: Protected when the context clearly signals it is not a factual statement, generally shielding speakers from IIED or defamation liability.

  2. Case: Hustler Magazine v. Falwell.

C. Distinguishing Fiction vs. Fact

  1. Relevance: Crucial for defamation and false light claims to determine whether a publication conveyed fact or opinion.

  2. Context: The role of disclaimers in fiction and how readers interpret contextual cues (e.g., adaptations based on true events vs. non-fiction reports). (Time v. Hill family discussion).